Brittingham v. General Motors Corp.

• Decision Date: 16 May 2008
• Docket Number: No. 06-3114.,06-3114.
• Citation: 526 F.3d 272
• Parties: Julie BRITTINGHAM and David Brittingham, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Virginia Stull, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.3d 272

Julie BRITTINGHAM and David Brittingham, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Virginia Stull, Defendants-Appellees.

No. 06-3114.

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2008.

Decided and Filed: May 16, 2008.

ARGUED: Thomas J. Intili, Skilken, Lowe & Dankof, Dayton, Ohio, for Appellants. John M. Kunst, Jr., Dinsmore & Shohl, Cincinnati, Ohio, for Appellees. ON BRIEF: Thomas J. Intili, Skilken, Lowe & Dankof, Dayton, Ohio, P. Richard Meyer, Meyer & Williams, Jackson, Wyoming, for Appellants. John M. Kunst, Jr., Melissa L. Korfhage, Dinsmore & Shohl, Cincinnati, Ohio, for Appellees.

Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

The plaintiffs, Julie and David Brittingham, appeal the district court's denial of their motions to remand the case to state court and its grant of summary judgment in favor of both defendants, Dr. Virginia Stull ("Dr.Stull") and General Motors Corporation ("GM"). The plaintiffs' claims arose from a pre-employment physical examination conducted by one of GM's physicians, Dr. Stull. That examination produced two abnormal lung function tests, the results of which were never discussed with Ms. Brittingham. When she was later diagnosed with a lung disease, the plaintiffs sued GM, Dr. Stull, and several others for negligence, intentional misconduct, breach of fiduciary duty, and fraudulent concealment. The case was originally filed in state court, but was removed by the defendants to federal district court under 28 U.S.C. § 1441 on the basis of complete preemption. Because we find that the district court did not have subject matter jurisdiction at the time of removal, we VACATE the district court's judgment and REMAND with instructions to remand the matter to the state court from which it came.

I. Factual and Procedural Background

Ms. Brittingham applied for employment at GM in July 1997. On August 1, 1997, she underwent a pre-employment physical examination that included a pulmonary function test. After the first test showed Ms. Brittingham's lung function to be 57% of predicted value, the test was repeated and again it showed diminished lung function, this time at 55% of predicted value. In her deposition, Ms. Brittingham testified that no one explained to her why the test had to be repeated. Joint Appendix ("JA") at V. III, p. 493-94. After reviewing two abnormal pulmonary function tests, Dr. Stull did not discuss the results and their significance with Ms. Brittingham. Instead, Dr. Stull had Ms. Brittingham sign a printout of the results and then approved her for employment in a GM plant. Subsequently, Ms. Brittingham worked full-time for GM from September 11, 1997, until August 11, 1999, when she became physically unable to continue working. In September 1999, Ms. Brittingham was diagnosed with Alpha-1 Antitrypsin Deficiency Syndrome ("AAD"), also known as "acquired emphysema." AAD is an inherited condition resulting from the liver's failure to produce a sufficient amount of the protein alpha-1 antritrypsin. To extend her shortening life expectancy, Ms. Brittingham, as of September 24, 2007, was awaiting a double lung transplant which carries a fifty percent, five-year death rate. Ms. Brittingham maintains that if Dr. Stull had informed her of the abnormal test results and referred her to a physician, she would have stopped smoking and sought immediate treatment.

On February 9, 2001, the Brittinghams filed a complaint against GM, Dr. Stull, and others in Ohio state court. J.A. at Vol. II, p. 197. The defendants removed the case to federal court on the grounds that some of the claims were subject to complete preemption under section 301 of the Labor Management Relations Act (LMRA). They argued that the state law tort claims were actually based on alleged breaches of the collective bargaining agreement ("CBA") that Ms. Brittingham was subject to during the course of her employment. The plaintiffs moved to remand arguing that the complaint (1) only stated state law claims, (2) did not rely on any provision in the CBA, and (3) did not contain a federal claim. J.A. at Vol. I, p. 70. The district court disagreed, reasoning that it had subject matter jurisdiction over at least one of the plaintiffs' claims—the allegation that Ms. Brittingham was coerced to return to work—because it fell within the scope of the CBA and was necessarily preempted. Id. at 74. The court noted that the CBA specifically addressed sick leave and returning to work and that there was no basis in state tort law for a claim based on being coerced to return to work. Id. After denying the motion to remand, the district court granted the plaintiffs' motion to file an amended complaint—one that would be limited to state law claims—recognizing that the plaintiffs' express purpose was to eliminate any claim which would be subject to preemption. Id. at 76-77.

The plaintiffs' first amended complaint, in addition to other changes, omitted the previous allegations that GM (1) placed Ms. Brittingham in an environmentally hazardous work environment and (2) coerced her to return to work when she was ill. Id. at 130-46. Those two claims were dismissed with prejudice. Id. at 77. The district court then reached the issue of whether it had original jurisdiction over any of the remaining claims in the amended complaint—essentially asking whether there were any remaining claims that were preempted by the LMRA. The defendants argued that several of the plaintiffs' claims were preempted—all of which were omitted in the amended complaint except one— "that GM and Delphi failed to disclose the results of her physical examination both before and after her employment." Id. at 77-78. The defendants contended that the claim would require reference to a provision in the CBA that provides: "A report of physical examination and any laboratory test made by physicians acting for the Corporation will be given [sic] the personal physician of the individual employee involved upon the written request of the employee." Id. at 78, 168 ¶ 105. The district court found that Ms. Brittingham was not subject to the CBA at the time of the examination (pre-employment) and consequently was not subject to any particular procedure for receiving results—a finding reinforced by the complaint's language limiting the claim to the time period "before and after" employment. Since the plaintiffs' claims would not require interpretation of the CBA and were rooted in state law, none of the remaining claims were preempted. Id. at 80. Finding it no longer had original jurisdiction, the district court then declined to exercise supplemental jurisdiction over the plaintiffs' state law claims, some of which might raise "potentially complicated issues of state law." Id. at 81. The case was remanded to state court.

Upon returning to state court, the plaintiffs again amended their complaint and again it was removed to federal court by the defendants. The significant difference between the first amended complaint—in which the district court found that none of the claims were preempted—and the amended complaint filed in state court was that the former limited the negligence claim to the time "before and after" employment while the latter did not. Compare Pl. 1st Am. Compl. (federal court), J.A. at V. I, p. 138 ("They failed to disclose to plaintiff Julie Brittingham the results ... both before and after her employment ..."), with Pl. 1 st Am. Compl. (state court), J.A. at V. I, p. 91 ("Said Defendants failed to disclose to Plaintiff Julie Brittingham the results of her pre-employment physical examination and testing with General Motors"). The plaintiffs filed a motion to remand arguing that none of the claims were preempted. The district court concluded that the complaint, "taken on its face, presents factual allegations of actions that allegedly occurred while Brittingham was employed at GM or Delphi" and since "those actions may have taken place during the time when Brittingham was governed by the CBA," adjudication of the claims may require interpretation of the CBA. J.A. at VII, p. 308. Consequently, the district court denied the plaintiffs' motion to remand.

In April 2003, the district court granted the plaintiffs' motion to file a second amended complaint. In the second amended complaint, the plaintiffs limited each of the claims discussed above to the time period "before and after employment." The district court, dismissing numerous arguments by the defendants that some of the claims were still preempted, concluded that the plaintiffs' second amended complaint was not subject to preemption. However, instead of remanding the case back to state court, the court exercised supplemental jurisdiction over the state law claims. The court attributed the volleying of the case between federal and state court to the plaintiffs' tactics which it found were "clearly `manipulative,'" regardless of whether they were intentional. Id. at 403. The court noted that significant litigation in the case had already taken place and it found that the principles of judicial economy and fairness outweighed the principle of comity in the instant case. Id. at 403-04.

In November 2003, the district court granted Dr. Stull's motion for summary judgment after it found that the plaintiffs' complaint was for medical malpractice, which is subject to a one-year statute of limitations that the plaintiffs had not met. Id. at 546. In June 2004, the district court granted GM's motion for summary judgment because it found that, under Ohio law, a potential employer does not have a duty to disclose an applicant's medical condition to her and refer her to a qualified physician. J.A. at V. IX, p. 1343. Without a duty, the plaintiffs' other claims, including intentional misconduct, breach of fiduciary duty, fraudulent concealment, and loss of consortium were dismissed. Id.

II. Analysis¹

We review a district court...